Prenups: a client’s new best friend?

In these strange times, people are taking stock and thinking about what really matters to them. This may lead to decisions being made about their relationship status, i.e. decisions being made to separate, stay together or getting engaged, or due to fewer weddings taking place, postponing marriage until some point in the future ‘when all this is over’.

Individuals faced with this enforced period of reflection may be more open to seeing the value of a prenuptial agreement, presenting an opportunity to have a discussion with our clients. But what exactly are we promoting and to whom?

The law relating to prenuptial agreements

It is no longer remarkable to see a prenuptial agreement being upheld by the court, reaching the stage where an agreement made by fully-aware parties is likely to withstand challenge, so long as the challenger cannot establish unfairness, either at the point of formation or within the actual terms.

This approach is reflected in the growing body of case law that culminated in Radmacher v Granatino in 2010. There is no better summary of the law than the statement of the majority in Radmacher:

“The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”

This applies equally to post-nuptial agreements and, of course, agreements between civil partners.

Winning hearts and minds: overcoming client reservations

There are no statistics on the true prevalence of marital agreements. There is no mechanism for their registration and judicial statistics do not record what proportion of financial remedy cases – either contested or consented – involve a marital agreement.

Prenuptial agreements were once something that ‘other people’ do – i.e. Americans in TV shows or the super-rich. However, research undertaken in 2011 sought to better understand public attitudes to prenuptial agreements. This quotation from the report, cited by the Law Commission in 2014, sums up the position beautifully:

‘the public now see pre-nuptial agreements as “a possibility – for others, if not for themselves”’^[1].

Since Radmacher, my practice has seen an increase in enquiries about prenuptial agreements and a steady, but more modest, increase in the number of couples actually following through and signing on the dotted line. However, they do remain a minority pursuit.

What is holding people back?

Prenuptial agreements undermine marriage

This is an ideological statement. I would offer by way of reassurance that there have been no serious suggestions that prenuptial agreements should be mandatory. By entering a prenuptial agreement, you are exercising freedom of choice to make financial arrangements on divorce in accordance with your beliefs and priorities – but you don’t have to enter an agreement.

The divorce rate in the UK appears comparable with other similar countries, offering little in the way of affirmation that the current law on prenups is “saving” marriages.

Prenuptial agreements are expensive

A well-drafted prenuptial agreement does not come cheap and it is down to family lawyers to show their value as an investment, with the returns being certainty, openness, trust between the parties and a reduced risk of high-cost litigation upon divorce.

It is also important to educate the public about the near certainty that a DIY prenup would have zero legal impact on a future financial settlement. This inevitably sounds like family lawyers wanting to keep challengers off their territory, but it is deeply concerning to see people being given false peace of mind and parting with modest sums of money on a promise of this kind.

There is no point entering into a prenuptial agreement as we are in our early thirties and barely have anything except cars and student debts

When couples marry with a very low asset base or even if they have little more than a mortgaged family home and modest pension provision, the value of a prenuptial agreement is limited. Either their financial settlement on divorce would be determined with reference to need – and pretty modest needs at that – or, if they do increase their wealth substantially, the agreement would somehow have to anticipate that and deal with it fairly, which is practically impossible.

It is perhaps better to focus on individuals for whom a pre or post-nuptial agreement would

actually make a difference, such as:

• Established entrepreneurs
• Venture capitalists making a major investment
• Individuals with an interest in a family trust
• Couples, even those of modest means, marrying in later life and/or remarrying
• Couples who have already entered into an overseas prenuptial agreement but have relocated to England or Wales
• Individuals who have inherited or have likely inheritance prospects

I don’t want to negotiate about finances while preparing for my wedding

It is often said that the British don’t like to talk about money. However, establishing some form of financial disclosure and finalising terms need not be awkward. In the vast majority of prenups cases I have handled, it just isn’t like that.

The process is handled in a professional, non-emotional way. Using experienced lawyers empowers lay clients to distance themselves from their prenuptial agreement in a way that gives them space to negotiate terms without that impacting upon their personal relationships.

I find that this works best when the process is begun a long way in advance of any wedding date.

Taking pre-nups to the people

I would suggest that prenuptial agreements will not become truly widespread in this country until a statutory scheme of recognition and safeguards come into law and there are no signs that this will happen any time soon.

In the meantime, family lawyers can help individuals who would genuinely benefit from a marital agreement of some form overcome preconceptions and invest in future certainty by:

• Marketing them realistically – if we try to say that almost anyone could benefit from a prenuptial agreement, we are unlikely to be taken seriously
• Being upfront about what a prenup or postnup can or cannot do – anecdotally, people’s preconceived ideas range from “prenups aren’t valid here” to a belief that they can reliably eliminate financial claims on divorce, neither of which is true
• Getting the message out there that the process takes time and should be an integral part of early wedding planning, not a last minute purchase

Blog, talk about them and start a conversation with a contact. You never know what might come back.

References

^[1] A Barlow and J Smithson, “Is Modern Marriage a Bargain? Exploring perceptions of prenuptial agreements in England and Wales” [2012] 74(3) Child and Family Law Quarterly 305, cited in Matrimonial Property, Needs and Agreements Law Comm (No 343), (2014), p78